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Downing v. Ford Motor Co.

United States District Court, E.D. Michigan, Southern Division

March 22, 2018

KRISTY DOWNING, Plaintiff,
v.
FORD MOTOR CO., Defendant.

          OPINION & ORDER (1) OVERRULING PLAINTIFF'S OBJECTIONS (DKT. 23), (2) ACCEPTING THE RECOMMENDATION OF THE MAGISTRATE JUDGE (DKT. 22), AND (3) GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. 16)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         Plaintiff Kristy Downing filed this case against Defendant Ford Motor Co. (“Ford”), alleging violations of the Sherman Act, 15 U.S.C. § 1, and claims of tortious interference with business expectation. The matter was referred to Magistrate Judge Steven Whalen for all pretrial proceedings. See Order of Referral (Dkt. 9). The magistrate judge issued a Report and Recommendation (“R&R”) (Dkt. 22), recommending that Ford's motion to dismiss (Dkt. 16) be granted and that the complaint be dismissed with prejudice. Downing timely filed an objection to the R&R (Dkt. 23), Ford filed a response (Dkt. 25), and Downing submitted a reply (Dkt. 26). For the reasons that follow, the Court overrules Downing's objections, adopts the magistrate judge's recommendation, grants Ford's motion to dismiss (Dkt. 16), and dismisses the case with prejudice.

         I. BACKGROUND

         Downing is an unemployed patent attorney who worked with Ford in some capacity beginning in 2000. Compl. ¶¶ 7, 11 (Dkt. 1). She first clerked as a product development engineer, then worked in Ford's college graduate rotational program. Id. ¶ 11. After graduating law school in 2003, she clerked in Ford's in-house patent department before being transferred to Quinn Law Group, a law firm that is “strictly prohibited from doing Ford work.” Id. ¶ 13. Downing does not discuss what happened between 2003 and 2008, but alleges that in 2008, she left the law firm of Foley & Lardner and reached out to Ford's chief intellectual patent (“IP”) counsel, Bill Coughlin, regarding employment opportunities. Id. ¶ 14. Coughlin instructed his in-house counsel team to provide her with work as a solo practitioner. Id.

         Downing alleges that she experienced sexual harassment at different “places of public accommodation” during her time as a solo practitioner. Id. ¶ 15. These places included Life Time Fitness, LA Fitness in Livonia, Washtenaw Community College's fitness center, Ford's office facilities in Dearborn, Downing's neighborhood in Westland, and in commercial real estate Downing rented in Novi, Michigan. Id. Downing filed a lawsuit against Life Time Fitness, Downing v. Lifetime Fitness, No. 2:10-cv-11037 (E.D. Mich.). Id.

         In February 2012, she applied for two positions with the U.S. Patent and Trademark Office (“USPTO”), and alleges that she was the “best qualified” applicant for both positions. Id. ¶ 16. In July 2012, she visited the USPTO's new satellite office in Detroit. Id. ¶ 17. Downing alleges that the USPTO staff treated her with “hostility”; one employee questioned her and followed her around, while a “mall-cop” attempted to flirt with her. Id. Six weeks after the event, Downing was served with a ticket for disorderly conduct based on her visit. Id. ¶ 18. She attempted to contact the patent office to tell her side of the story, but no one ever responded. Id. The charges against her were eventually dismissed. Id.

         Downing decided to stop working as a solo practitioner for Ford in April 2013. Id. ¶ 19. She informed Coughlin that she would try to find patent work in Washington, D.C. and also informed him that if he would like her to work for one of Ford's “provider firms, ” she would be willing to do so. Id. He agreed to be a reference for her if she sought future employment. Id. However, an attorney working for Ford's in-house patent department told Downing that Ray Coppiellie, a Ford patent attorney, had told the attorney that Downing “was no longer practicing patent law.” Id. ¶ 20.

         Downing faced difficulty in finding work since leaving Ford in 2013. She applied to the District of Columbia bar in 2013, but she alleges that David Kelley, a member of Ford's in-house patent team, delayed in verifying her past employment to the National Conference of Bar Examiners. Id. ¶ 21. Downing has applied for work at the USPTO, private law firms, IP firms, and with her previous legal employers, Foley & Lardner and Quinn Law Group, all to no avail. Id. ¶ 22. She also unsuccessfully applied to engineering positions that do not require a law degree with various car manufacturers, such as Toyota and General Motors. Id.

         Eventually, Downing claims that she realized that Coughlin effected a “no-poaching” agreement with respect to her hire. Id. ¶ 24. She alleges that Coughlin has done so because he would like to force her to work as an independent contractor for Ford, but not to be a Ford employee, so as to be immune from any discrimination claims. Id.

         Downing claims that Coughlin has done the exact same thing to two out of five other women that she knows to have worked in-house at Ford, but never to any men. Id. In 2008, Coughlin laid off two men and two women who had worked as in-house counsel. Id. ¶ 25. The two men now work for law firms, but the two women, Diana Brehob and Gigette Bejin, have “struggled profusely” and have been “forced to work as solo practitioners essentially doing only Ford work.” Id. Downing further alleges that Coughlin has been hiring and training less-qualified male attorneys - either by hiring them himself or by having law firms such as Dykema Gossett or Brooks Kushman hire them - rather than rehiring her, Brehob, or Bejin. Id. ¶¶ 30-34.

         Downing requested Equal Employment Opportunity investigations at General Motors, Foley and Lardner, and the USPTO to determine why she was not hired. Id. ¶ 35. She claimed that the responses included either a “fabricated story” that she had allegedly disgraced herself, or referred to “protected activity” that she had engaged in (i.e., filing civil rights lawsuits or her Wisconsin bar license suspension due to disability). Id. ¶¶ 35-37. Specifically, General Motors stated it did not hire her because of her lawsuit against Life Time Fitness and because her Wisconsin bar license was suspended; Foley & Lardner stated that it did not hire her because she “filed several frivolous and vexatious lawsuits against JC Penny, Life Time Fitness and Judge Patrick Duggan, ” and because of the suspension of her Wisconsin bar license. Id. Downing claims that these reasons are “pretext” for participating in Ford's no-poaching agreement. Id. ¶ 37. Downing further asserts that an employment agreement she had with the USPTO was unlawfully terminated in 2016; the “reason” for this was based on “three completely false rumors.” Id. ¶ 38. Coughlin was listed as a reference for this position. Id.

         Downing also alleges that in 2015, she attempted to sell a patent (the “Patent”) which was ultimately purchased in November 2015 “for a fraction of its market value” by Open Invention Network (“OIN”). Id. ¶ 40. She claims that Ford “was to soon become a member” of OIN, and that Coughlin used the payment of her invention royalties “as an excuse to have others continue to participate in his no-poaching agreement” for an additional year. Id.

         Downing filed the instant complaint on February 28, 2017, alleging that Ford (i) violated the Sherman Act, 15 U.S.C. § 1, by being the “ringleader” in a gender-based “no-poaching agreement”; (ii) tortuously interfered with her employment at the USPTO; and (iii) tortuously interfered with her sale of the Patent. Ford filed a motion to dismiss all counts (Dkt. 17) on April 7, 2017, which Magistrate Judge Whalen recommended granting.

         II. ...


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